Eure v. . Odom , 9 N.C. 52 ( 1822 )

The principle seems to be well established in relation to the action of slander that the words spoken should contain an express imputation of some crime liable to punishment, some capital offense or other infamous crime or misdemeanor. Words which convey only the imputation of an imperfect sense or practice of moral virtue, duty, or obligation are not sufficient to support the action. The crime charged, too, must be such as is punishable by the common or statute law; for, if it be only a matter of spiritual cognizance, it is not, according to the authorities, actionable to charge it. Cro. Eliz., 205; Salk., 696; 6 Term., 694.

There are two offenses defined in the act of 1805 (C. 682, Rev. Code): One is "where a man shall take a woman into his house, or a woman a man, and they shall have one or more children without parting, or an entire separation"; the other is "where they bed or cohabit together"; and these alone are made indictable.

Both descriptions evidently point to a series of offenses committed in the course of their dwelling together; nor could an indictment, framed on this act, be maintained by proof of a single unlawful intercourse. Such offense is punishable only by fine, in the manner provided by the act of 1741.

As, therefore, the words laid in this declaration are such as, (54) if true, would not have brought the plaintiff within reach of the penalty of the act of 1805, they will not sustain an action of slander; for incest, however grievous it may be as a crime foro caeli, is not, as such, punishable in foro seculi.

As to the power of the court to order a nonsuit against the will of the plaintiff, I do not think the question fairly arises on this record, fornon constat but the plaintiff submitted to the order and appealed from the merits of the decision.

If, indeed, the plaintiff had prayed that the jury should pass on the cause, and the court had refused it, the question would now be open. But on a motion simply for a nonsuit, because the words were not actionable, the court could only, under its view of the subject, pronounce the judgment it has done. My opinion, therefore, is that the judgment be affirmed.

HALL and HENDERSON, JJ., concurred.

PER CURIAM. Affirmed.

Cited: McCurry v. McCurry, 82 N.C. 300; Gudger v. Penland, 108 N.C. 599.